Business
Court puts
online
reviewers
in Oregon
on notice
Supreme Court declines to offer
ordinary people higher media
protection from libel suits
AgLife
B
Thursday, July 14, 2022
The Observer & Baker City Herald
A reason for
OPTIMISM
Wallowa County businesses see promise of rebound during tourism season
By ZANE SPARLING
The Oregonian
SALEM — Merchants irked by online
reviews will still have an open lane to file
libel lawsuits against their critics, the Oregon
Supreme Court signaled, while media organi-
zations will remain relatively secure against
such defamation claims.
In a closely watched ruling, the state’s
highest court declined to extend certain free
speech protections available to the media to
ordinary people, batting down arguments that
anyone with an internet connection and an
opinion now acts as a journalist.
While the Thursday, June 23, decision has
broader implications, the case at hand stems
from a Jackson County Circuit Court lawsuit
between dueling piano stores in Medford.
In 2013, Piano Studio and Showcase owner
Tom Lowell sued competitor Artistic Piano
after its general manager, Matthew Wright,
allegedly posted a phony review on Google
claiming the Piano Studio store “smelled like
grandma’s attic” and that the business “can’t
be trusted,” according to court records.
Circuit Judge Dan Bunch found in favor of
Artistic Piano without a trial in 2016, noting
the online review had been deleted before it
could be documented and saying he couldn’t
issue a ruling without an exact copy.
Lowell appealed and won, sending the
case to the Oregon Supreme Court.
Free speech advocates hoped the state’s
high court would seize the opportunity to
change Oregon law, which currently offers
separate, tougher standards to prove defama-
tion suits against the media. Successful cases
against the media must show “actual malice”
— that a falsehood was published on purpose
or with reckless disregard for the truth.
Libel suits filed against a regular person
can succeed merely if the statements are
proven untruthful.
Oregon’s double standard is out of step
with the law in most other states, said Lewis
& Clark law professor emeritus William
Funk, as well as the interpretation in federal
court in Oregon, which makes no distinction
between media and non-media writers.
“If you file a libel suit in a federal court in
Oregon, then you will get a different constitu-
tional decision than if you file in Oregon state
court, which just doesn’t make any sense,”
Funk said.
The U.S. Supreme Court, however, hasn’t
ruled definitively on the matter.
Funk joined two other Oregon law pro-
fessors, the Electronic Frontier Founda-
tion, UCLA law professor Eugene Volokh
and appellate lawyer Howard Bashman in a
friend of the court brief seeking to extend the
“actual malice” standard to all defamation
cases on topics of public concern.
Justice Pro Tempore Lynn Nakamoto
declined to do so.
“Plaintiff will not be subject to a height-
ened proof-of-fault requirement … that
applies to media defendants in defamation
cases,” Nakamoto wrote.
The justice acknowledged the criticism,
but said the case “did not offer an oppor-
tunity for careful examination” of the fine
line between web users and institutional
journalists.
“(We cannot) destabilize over 40 years of
precedent on the strength of a few hypotheti-
cals and some abstract concerns about moder-
nity,” she wrote.
Nakamoto returned the case to the lower
court, saying the exact text of the review
wasn’t necessary to proceed. In a separate
opinion, Justices Thomas Balmer and Chris-
topher Garrett said they would overturn the
double standard.
Lowell, 68, said he was pleased the court
had seen the distinction between journalistic
commentary and what he called a “cyber-
smear” campaign by a rival.
“How could letting people get away
with publicizing false facts be in the public
interest?” he said.
A lawyer for Artistic Piano didn’t respond
to a request for comment.
The Oregon Supreme Court in 2016 pre-
viously sided with a consumer who wrote a
scathing online review of a wedding venue,
but only after determining the man had
posted his negative opinions, not assertions
of fact.
Bill Bradshaw/Wallowa County Chieftain
Customers enjoy the outdoor seating Thursday, July 7, 2022, at the Outlaw Restaurant in Joseph. The Outlaw is one business that has had a hard
time finding enough employees to serve all the customers who show up.
By BILL BRADSHAW • Wallowa County Chieftain
ALLOWA COUNTY — As the tourism season
W
ramps up in the wake of two years of difficulties
caused by the COVID-19 pandemic, business
owners and others are feeling optimistic — for the most part.
“The sentiment does seem to be
optimistic,” said Jennifer Piper, exec-
utive director of the Wallowa County
Chamber of Commerce, Enterprise.
Jude Graham, of the Joseph
Chamber of Commerce, agreed.
“I think everybody’s optimistic,”
she said. “The tourists that are
coming through are having a great
time. They’re excited about traveling
again and the businesses are excited
about the summer.”
Mike Lockhart, who is both a busi-
ness owner — of the Wallowa Lake
Tramway — and a representative of
the Wallowa Lake Tourism Associa-
tion, was cautiously optimistic.
“It’s really hard to say because
we’re dealing with so many negative
variables,” he said.
He said for the tram, the big thing
is the weather. If it’s cloudy or smoky,
visibility is down and people can’t get
a good view from the top of Mount
Howard. But he’s optimistic it will
improve.
He said tourist accommodations
are doing well and visitors are staying
longer.
“That may be because of the price
of gas, but I really don’t know,”
he said. “There’s so many things
screwed-up but it’s really hard to tell.”
One of the challenges business
owners face is a lack of employees.
During the pandemic, state and fed-
eral unemployment insurance allowed
people to take time off from work.
“A lot of people quit the labor force
for the couch,” Lockhart said. “Other
people had good reason to quit, such
as approaching retirement age. This
just accelerated it somewhat.”
He noted that from personal obser-
vation, many local youths don’t seem
to be working.
“But I really don’t know what’s
causing trouble with the labor force,”
he said.
Scott Rushton, co-owner of the
Outlaw Restaurant, Joseph, said
the lack of employees is hurting his
business.
“The business is there but there’s
just no employees because of all the
government money they’ve been
given. Nobody wants to work,” he said,
adding that he’s open only half days
as a result and hasn’t opened his ice
cream stand. “People are showing up
even though the gas prices are high.”
He said he is aware of other
businesses experiencing the same
problem.
Graham agreed that the govern-
ment’s answer to the pandemic of
infusing communities with more
money didn’t really help.
“I think it hurt,” she said. “There’s
a lot of businesses looking for
employees and they’re on government
assistance. Some of that money was
spent out of the county.”
Piper noted that in addition to the
labor problems, the weather has been
a challenge this year. Although last
year saw much heat and smoke from
wildfires, the rainy spring and cloudy
weather experienced this year have
been a challenge.
While the dire fears many business
owners expressed when the govern-
ment shut down businesses at the start
of the pandemic in 2020 for the most
part didn’t materialize, other chal-
lenges such as the labor shortage has.
“The challenges were not so much
lack of business or a lack of cus-
tomers,” Piper said. “The challenges
(now are a) lack of staffing that busi-
nesses are still facing. It is still a big
challenge.”
Just the same, most interviewed
were hopeful the tourist season now
underway will be at the very least a
“leveling out this summer,” as Piper
said.
Lockhart said from what he’s
heard, restaurants and lodging estab-
lishments are doing well.
“I look forward to the summer and
I’m very optimistic that it’ll be a great
one,” Graham said.
COVID-19 business fines going uncollected
Oregon struggles
to collect amid
appeals, paperwork
By JAMIE GOLDBERG
The Oregonian
SALEM — State work-
place safety officials have
issued at least 48 fines
totaling more than $900,000
since the start of the pan-
demic to Oregon businesses
they say intentionally vio-
lated COVID-19 safety
restrictions.
But those employers
have ponied up only about
$15,000 so far — totaling
less than 1.7% of the amount
Samantha Swindler/The Oregonian, File
Courthouse Club Fitness in Keizer, a Salem-based gym chain, reportedly
was issued five citations by the Oregon Occupational Safety and Health
Division for violating COVID-19 safety restrictions.
they were collectively fined.
The situation illustrates
the challenges that Ore-
gon’s workplace safety
agency has navigated as it
has tried to hold employers
accountable and the limita-
tions it has faced in trying to
ensure compliance during an
unprecedented pandemic.
The Oregon Occupational
Safety and Health Divi-
sion received an onslaught
of complaints — more than
31,000 in total — related to
COVID-19 in a little more
than two years. In com-
parison, the agency, which
has 85 enforcement offi-
cers and a $13.4 million
enforcement budget, usu-
ally responds to about 2,000
complaints a year. Known as
Oregon OSHA, the agency
responded to those com-
plaints by doing roughly 750
See, Fines/Page B6